Selskabsretligt ansvarsgennembrud: Et komparativt retsøkonomisk syn på mulighederne for at tilsidesætte princippet om begrænset hæftelse i kapitalselskaber

Anders Aagaard Larsen

Student thesis: Master thesis

Abstract

Piercing of the corporate veil is a well-known term in many jurisdictions. It can be defined as a situation where a shareholder in case of the company’s bankruptcy is liable jointly with the company towards the company’s creditors. The main rule, however, and a core element in corporate law, is that liability is limited by the company’s assets – known as limited liability. It is possible to disregard the limited liability in certain situations, including by contractual agreement, regulation or non-regulated principles of law. Reversal through bankruptcy law or concern liability for taxes in case of joint taxation, are examples of regulated shareholder liability. Non-regulated principles include e.g. when it is not possible to distinguish company assets from shareholder assets – so called intermingling of assets - or when incorporation has happened only to circumvent the law. It has been discussed whether it is also possible to disregard the principle of limited liability on other non-regulated grounds – e.g. if the company is not sufficiently capitalized. It is deduced through analysis of case law and other sources of law not to be the case. One of the objectives of corporate law is to promote growth. The acceptance of limited liability is a way to do this - at the expense of creditors in case of bankruptcy. Especially a subsidiary’s creditors are at risk of financial loss because corporate groups tend to be operated as a single unit. Corporate law also seeks to protect creditors through a series of requirements for companies to ensure transparency. However, it can be argued that the provisions are not sufficient to protect creditors effectively. The consequences of corporate veil piercing are assessed with inspiration from other jurisdictions. It is found that corporate veil piercing on non-regulated grounds will benefit creditors, but is harmful to the company, the shareholder and legal certainty. It is argued that it will not bring significant change to the situation if corporate veil piercing is regulated because it still will be based on very subjective conditions. It is considered a better solution to introduce provisions on group law liability. In this way, protection of subsidiary creditors is increased. The provisions can be combined with liability regulation in specific areas where it is found necessary – e.g. in the environmental field.

EducationsMSc in Commercial Law, (Graduate Programme) Final Thesis
LanguageDanish
Publication date2013
Number of pages90